Report 104 (2005) - Young Offenders - Law Reform Commission : Lawlink NSW

9.1 Both this and the previous chapter deal with the Children’s Court, but with different focuses. Whereas Chapter 8 explored issues relating to the sentencing process, this chapter explores issues relating to the Court itself. In particular, this chapter considers:

9.2 The Children’s Court is constituted under the Children’s Court Act 1987 (NSW). Issues Paper 19 (“IP 19”) asked whether the Children’s Court ought to be renamed.¹ The Commission received a divided response in submissions, with good reasons both for and against a name change.² A number of submissions also suggested that consultation with young people should form part of any proposed changes.³

9.3 Most of the arguments in favour of retaining the name “Children’s Court” were of a practical nature. Examples given included:

9.5 The Commission has concluded that there are several justifications for changing the name of the Court and that these reasons outweigh arguments for maintaining the present title. The main reasons relate to the seriousness of the Court’s work and the age group of the majority of the young people appearing before the Court.

9.6 The Children’s Court exercises criminal jurisdiction under the Children (Criminal Proceedings) Act 1987 (NSW) (“CCPA”),⁶ and care jurisdiction under the Children (Care and Protection) Act 1998 (NSW). The Children’s Court also carries out the function of Parole Board for young offenders who have been sentenced in the Supreme and District Courts for serious offences.⁷ Accordingly, the work of the Children’s Court is substantial and far-reaching, involving serious and difficult decisions. This applies both to the criminal and care jurisdictions, the latter often involving decisions to remove a child from his or her parents. Unlike the Local Courts, the Children’s Court frequently tries serious offences.

9.7 While the work of the court extends across more than one jurisdiction, the majority of its matters are criminal. In 2004, 84% of matters commenced and 86.5% of matters finalised in the Children’s Court were criminal matters.⁸ Of these criminal matters, 70% of males and 64.5% of females were aged 16 to 18 and over, the last-named group including those who were under 18 years at the time of the alleged offence, but were 18 years or over at the time of the finalisation of the matter.⁹ Children appearing in parole matters are almost without exception in the higher age bracket, given that it usually takes time for a young offender to get to a point in their involvement in the criminal justice system where they are sentenced to detention or imprisonment.¹⁰ On the other hand, children appearing in care matters, which forms less than 20% of the Court’s caseload, are usually under 8 years of age, and certainly rarely 16 years or older.¹¹

9.8 Changing the name of the court to the “Youth Court” would therefore reflect the reality of Children’s Court practice. Moreover, it would go some way to bolstering community confidence in a specialised court as the most appropriate venue for dealing with this age group of young offenders, and to stressing the seriousness of the court process to the young offenders themselves.

9.9 The divergence of opinion among those professionally involved with the Children’s Court might suggest that its name is not of vital importance. The Commission, however, thinks that the Court’s title is of significance. It ought to establish an immediate and obvious connection between the Court’s role in exercising the wide jurisdiction granted by the CCPA and the Young Offenders Act 1997 (NSW)(“YOA”), and the public perception of that role, which is important in maintaining public confidence in the system. As the Director of Public Prosecutions noted:

9.11 A number of submissions argued that it is the status, rather than the name, of the Children’s Court that ought to be reconsidered.¹⁷ In view of the significant nature of its jurisdiction, as described in paragraph 9.6, the Commission recognises the importance of its status. It is less obvious how that status should be enhanced.

9.12 Two views have emerged. First, that of the Standing Committee on Social Issues - that the Children’s Court’s status should be elevated to that of a District Court.¹⁸ Secondly, the one pressed in submissions to IP 19 – that the Children’s Court should be headed by a District Court Judge.¹⁹

9.13 An evaluation of these views must be made against the background of the current structure. The Children’s Court consists of magistrates appointed to it by the Chief Magistrate of the Local Courts. The Senior Children’s Magistrate is approved by the Attorney General (with the concurrence of the Chief Magistrate). To this extent, then, the Children’s Court is bound up with the Local Courts, although the Chief Magistrate cannot give directions to the Senior Children’s Magistrate.²⁰

9.14 The first approach argues for a radical restructure: the Children’s Court would effectively become independent of the Local Courts. Its relationship to or with the District Court would need determining. This is a big issue with significant resource implications. We have not consulted on this and it would be inappropriate in a reference devoted to sentencing issues to recommend such a restructure.

9.15 The second suggestion would necessitate at least two changes. First, a President of the Children’s Court would need to be appointed by the Attorney General, independent of the Chief Magistrate.²¹ Secondly, there would be a change in the appointment of magistrates to the Court, a matter addressed below.

9.16 In the Commission’s view, the appointment of a District Court judge to head the Children’s Court would enhance its status and be in line with other jurisdictions. The NSW Commission for Children and Young People (“CCYP”) pointed out that New South Wales is the only jurisdiction in mainland Australia that does not have a District Court judge as the head of the equivalent children’s courts.²² It argued that “the Children’s Court has a low status in the Court hierarchy and that this can discourage suitably qualified people from serving as Children’s Court Magistrates”.²³

9.19 Although as early as 1905 the Neglected Children and Juvenile Offenders Act 1905 (NSW) provided for a separate Children’s Court with specialist magistrates, in practice, magistrates were simply designated as children’s magistrates and only the major cities had specialist courts.³¹ The training, skills and experience of Children’s Magistrates was raised as an issue in IP 19.³²

9.20 While training and education can achieve a great deal in developing a highly responsive and skilled Children’s Court judiciary, a theme discussed in more detail below, selection of magistrates suited to this jurisdiction is equally important. It is a jurisdiction that calls for particular communication skills, pragmatism and personality traits. It can be an especially stressful, draining and confronting jurisdiction, taking into account that it covers both juvenile crime and the care and protection of children at risk.

9.21 The Children’s Court Act 1987 (NSW) recognises this in providing that an existing magistrate is qualified to be appointed as a Children’s Magistrate if he or she:

9.23 In New South Wales, the Chief Magistrate of the Local Courts appoints Children’s Magistrates from the bench of Local Courts Magistrates³⁴ and, as noted above, appoints, with the concurrence of the Attorney General, the Senior Children’s Magistrate³⁵ (who then has the status of a Deputy Chief Magistrate of the Local Courts).³⁶ In Victoria, on the other hand, it is the President of the Children’s Court, in consultation with the Chief Magistrate of the Magistrates’ Court, who determines who is appointed to that court.³⁷ The advantage of the Victorian approach is that an expert in juvenile matters has significant input into the choice of persons who will preside over these matters. The President may approach people she believes to be particularly suited to the jurisdiction to canvass their interest in being appointed. The system has worked well for Victoria, which currently has six full-time, long-serving Children’s Magistrates. We see merit in following this approach in New South Wales, particularly if a District Court judge were to head the Court.

9.25 With better selection and training, the level of expertise and skill of Children’s Magistrates has improved in recent years, especially at the Sydney metropolitan courts.⁴⁰ There are currently 12 specialist Children’s Magistrates hearing cases and five Children’s Registrars.⁴¹ On the other hand, concerns still remain, centred on the fact that not all matters receive the benefit of a specialist Children’s Magistrate.⁴² The Shopfront Youth Legal Centre submitted that some magistrates who are not specialist Children’s Magistrates, but spend most of their time in the Local Court, had difficulty adapting to the Children’s Court jurisdiction with its very different philosophy from the adult jurisdiction. Such magistrates, it was submitted, could benefit from further training and skills development.⁴³

9.26 The lack of specialist Children’s Magistrates outside the Sydney metropolitan region was a particular concern.⁴⁴ The Legal Aid Commission of New South Wales said in its submission:

9.29 In the short term, it was suggested that particular focus ought to be on those magistrates outside metropolitan Sydney who are required to preside over Children’s Court matters. It needs to be said, however, that it became obvious to the Commission in the course of our regional consultations that these magistrates are committed to implementing the rehabilitative policy aims of both the CCPA and YOA.

9.30 The Children’s Court is aware of the need for rigorous training of magistrates and is addressing this by means of extending education opportunities, particularly for new magistrates. Foremost among these are seminars for new Children’s Magistrates and magistrates who will sit in the Children’s Court. These are provided principally by the Judicial Commission of NSW working with the Local Courts and Children’s Court Education Committees.⁴⁹ For example, each year the Judicial Commission holds a Magistrate’s induction day and Orientation Program, with 100% attendance by new magistrates at these sessions for over 10 years.⁵⁰ In 2002-2003, the Judicial Commission hosted two Children’s Court conferences and two Children’s Court seminars, as well as sessions on Children’s Court care matters, with extended sessions for country magistrates.⁵¹ In 2003-2004, the Judicial Commission hosted three Children’s Court conferences attended by 61 magistrates and Children’s Court registrars.⁵²

9.31 In a similar vein, the Children’s Court raised the issue of judicial education for judges of the District and Supreme Court who hear appeals from the Children’s Court in both its criminal and care jurisdictions.⁵³ We agree that all judicial officers dealing with young offenders would benefit from the type of training currently offered by the Judicial Commission.

9.32 The CCYP has argued that Children’s Court facilities need to be upgraded.⁵⁴ It submitted that the low standard of these facilities reflects the Court’s low status.⁵⁵ The CCYP noted that many Children’s Court hearings are conducted in adult criminal courts or in old buildings poorly adapted for the purpose. For example, Rod Blackmore, Senior Children’s Magistrate from 1978 to 1995, argues that the use of the St James Centre in the Sydney CBD “is demonstrably inappropriate for families involved in care and protection cases”.⁵⁶

9.33 The Law Society of NSW’s 2001 report into Sydney metropolitan Children’s Courts concluded that these courts needed more interview rooms, appropriate “holding rooms”, safe witness rooms, child care facilities, installation of pay phones and a general upgrade and “backlog maintenance” of the facilities.⁵⁷ The report highlighted that “the condition of Children’s Courts facilities can contribute to unnecessary stress for the children and families using the courts”.⁵⁸

9.34 In opening the extensively-renovated Woy Woy courthouse, with special Children’s Court facilities, the Attorney General, the Hon R Debus, said that traditional courthouses were “intimidating and frightening” and that a new generation in courthouses would ensure that “sensitivity and dignity” played a part in the justice system and deliver the message that the justice system wants to help young people, not just punish them.⁵⁹

9.35 In February 2007, six new Children’s Courts (four crime and two care jurisdiction) will open at Parramatta, as part of the Parramatta Justice Precinct.⁶⁰ In addition, another Metropolitan Children’s Court will be built at a yet-to-be-decided city location. These will be customised courts for the hearing of children’s matters, with a high standard of facilities. As well, in March 2006, the old Wollemi Court will be changed to a Children’s Court, no doubt with the appropriate transformations. At the same time, older facilities at Bidura, Lidcombe, Cobham and Campsie will close. The St James Children’s Court, exercising the Court’s care jurisdiction, will also close.

9.36 Children’s Courts at Campbelltown, Woy Woy, Wyong and Port Kembla will continue to serve the greater Sydney region. The standard and appropriateness of facilities at these (excepting Woy Woy) and regional courts should ideally be evaluated as part of the general upgrading of the Children’s Court courthouses.

9.37 The CCYP gave a number of practical suggestions for improving the operation of Children’s Courts, which are worth considering. Where it is not practically or economically feasible to build specially designed facilities, there are simple improvements that can be made to alleviate the discomfort that must surely be felt by children involved in either the criminal or care jurisdictions of the court. The CCYP suggested, for example, rearranging furniture to allow easy interaction between magistrate, child, family and other agencies; and the provision of books, games, toys, videos or other activities for young people waiting for their case to be called and for younger children in the waiting area.⁶¹ The CCYP also referred to the success in several London juvenile courts of cafeterias staffed by volunteers who double as information providers.⁶²

9.38 The UK Home Office, in a study of the UK Youth Court, similarly suggested changes to the court environment that could be made within existing architectural constraints. It pointed out that:

9.40 Out of the Youth Court Demonstration Project, the Home Office distilled “Good Practice” guidelines, which include:

Table of contents

1. New South Wales Law Reform Commission, Sentencing: Young Offenders (Issues Paper 19, 2001), Issue 17, para 3.83-3.85.

2. Those in favour were: New South Wales Bar Association, Submission at 3; The Shopfront Youth Legal Centre, Submission at 13 (‘We do not have strong views on whether the Children’s Court should be renamed. We are amenable to the idea of calling it a “Youth Court” (but there is the potential problem that “youth” is a term often used to include people aged up to 21 or even 25).’); the Office of the Director of Public Prosecutions, Submission at 7; Victims’ Services, Submission. Those against were: the Legal Aid Commission of New South Wales, Submission at 12; NSW Commission for Children and Young People, Submission at para 14.03; Youth Justice Advisory Council, Submission; the National Children’s and Youth Law Centre, Submission at 3; and New South Wales Young Lawyers, Submission at 6. Those neither for nor against a change were: Public Defenders, Submission at 5; Law Society of New South Wales, Submission at 11; the (then) Minister for Juvenile Justice, the Hon C M Tebbutt MLC, Submission at 8 and the Children’s Court of New South Wales, Submission at 26. Similarly, there was no consensus of opinion expressed in the course of the Commission’s community consultations.

3. New South Wales Young Lawyers, Submission at 6; Law Society of New South Wales, Submission at 11.

6. Section 28(1) of the Children (Criminal Proceedings) Act 1987 (NSW) provides that the Court may hear and determine: (a) proceedings in respect of any offence (whether indictable or otherwise) other than a serious children’s indictable offence, and (b) committal proceedings in respect of any indictable offence (including a serious children’s indictable offence).

7. Children (Detention Centres) Act 1987 (NSW) s 29. In short, this section provides that the provisions of Parts 6 and 7 (Parole) of the Crimes (Administration of Sentences) Act 1999 (NSW) apply to juvenile detainees and to the Children’s Court as if it were the Parole Board.

8. S Moffat, D, Goh, and J Fitzgerald, New South Wales Criminal Courts Statistics 2004 (NSW Bureau of Crime Statistics and Research, Statistical Report Series No S93, 2005), Summary at 10, Tables 2.4, 2.4a and 2.4b.

9. New South Wales Bureau of Crime Statistics and Research, New South Wales Criminal Courts Statistics 2004 (Statistical Report Series No S93, 2005) Summary at 10, Tables 2.4, 2.4a and 2.4b.

10. Again, there are no available statistics analysing ages of children appearing in the Children’s Court in its capacity as Parole Board, and this information comes from the Court’s experience: SCM S Mitchell, Consultation.

11. There are no available statistics analysing ages of children appearing in the care jurisdiction. This information comes from the Court’s experience as well as the evidence that the Department of Community Services tends to focus on younger children: SCM S Mitchell, Consultation.

14. The Youth Court is part of the District Court. New Zealand’s history surrounding youth offenders is focused on the development of specific procedures and systems for youth, adjacent to the general criminal justice system and separate from the welfare system. The first Children’s Court was established under the Child Welfare Act 1925 (NZ), but it was not until the Children and Young Persons Act 1974 (NZ) (the predecessor to the Children, Young Persons and Their Families Act 1989 (NZ)) was enacted that the first Youth Court, with proceedings entirely separate from an adult court, was established. At all times, the ability to remit a child/youth (the age of which has varied over the past 150 years) to the District or High Court where a jury trial is conducted has been available.

16. Young Offenders Act 1985 (Canada) s 5. A youth court judge is a justice and provincial court judge, and has the jurisdiction and powers of a summary conviction court under the Criminal Code.

17. See NSW Commission for Children and Young People, Submission at para 14.04; Legal Aid Commission of New South Wales, Submission at 12; National Children’s and Youth Law Centre, Submission at 3; The Shopfront Youth Legal Centre, Submission at 13; the (then) Minister for Juvenile Justice, the Hon C M Tebbutt MLC, Submission at 8-9; Youth Justice Advisory Council, Submission; and the Law Society of New South Wales, Submission at 11.

18. New South Wales, Parliament, Legislative Council, Standing Committee On Social Issues, Inquiry into Children’s Advocacy (Report No 10, 1996), Recommendation 12. The National Children’s and Youth Law Centre likewise submitted that the Children’s Court needed to acquire an independent jurisdiction from the general Local Courts, Submission at 3.

19. Law Society of New South Wales, Submission at 11; Legal Aid Commission of New South Wales, Submission at 12; National Children’s and Youth Law Centre, Submission at 3; The (then) Minister for Juvenile Justice, the Hon C M Tebbutt MLC, Submission at 9; The Shopfront Youth Legal Centre, Submission at 13.

21. Note that the Chief Magistrate is not a District Court judge: Compare s 14A of the Local Courts Act 1982 (NSW) with s 14.

24. The (then) Minister for Juvenile Justice, the Hon C M Tebbutt MLC, Submission at 9; National Children’s and Youth Law Centre, Submission at 3.

28. The President of the Children’s Court of Western Australia is a judge of the same status as a judge of the District Court of Western Australia. A judge of the Children’s Court has the same powers in sentencing as a Supreme Court judge, and can also hear appeals against the decisions of Children’s Magistrates or Justices of the Peace. The judge only deals with the most serious charges brought before the court, and must deal with any matter requiring a sentence of detention or imprisonment greater than six months.

29. The (then) Minister for Juvenile Justice, the Hon C M Tebbutt MLC, Submission at 9.

30. Currently, pursuant to s 16(1) of the Children’s Court Act 1987 (NSW), the Senior Children’s Magistrate has the following functions: administering the Court; arranging Court sittings; convening Magistrates’ meetings; public consultation; providing judicial leadership; developing practice directions and recommendations for rules; and overseeing judicial training.

31. J Seymour, Dealing With Young Offenders, (Law Book Company, Sydney, 1998) at 19.

37. Children and Young Persons Act 1989 (Vic) s 11: “(1) The President, after consulting the Chief Magistrate, may assign any person who is appointed as a magistrate under section 7 of the Magistrate’ Court Act 1989 or as an acting magistrate under section 9 of that Act to be a magistrate for the Court, whether exclusively or in addition to any other duties.”

40. Legal Aid Commission of New South Wales, Submission at 12. The Shopfront Youth Legal Centre (Submission at 13) expressed the view that “the specialist children’s magistrates at the Sydney metropolitan Children’s Court possess a high level of training, skills and experience”.

42. The New South Wales Bar Association (Submission at 3) and the Office of the Director of Public Prosecutions (Submission at 7) submitted that: “The criminal law recognises the unique position of young offenders and treats them quite differently [from] adult offenders. Children’s Magistrates should be those with specialised knowledge, chosen for their ability to deal effectively with young offenders.”

44. See New South Wales Legal Aid Commission, Submission at 12; The Law Society of New South Wales, Submission at 10.

49. See Judicial Commission of New South Wales, Annual Report 2003-2004 at 10.

54. NSW Commission for Children and Young People, Submission at para 13.03-13.04.

55. NSW Commission for Children and Young People, Submission at para 13.03-13.04.

56. R Blackmore, “Children’s Courts are 100 years old … and we still deserve better” (2005) 43(3) Law Society Journal 26 at 27.

57. Law Society of NSW, New South Wales Children’s Court Facilities Report Card 2001 (Media Release, 29 January 2001).

58. Law Society of NSW, New South Wales Children’s Court Facilities Report Card 2001 (Media Release, 29 January 2001).

59. M Nolan, “What the law gets for $2.7m” The Daily Telegraph (4 March 2004).

60. However, the concern has been raised that “[t]ravel to Parramatta will involve enormous distances and times for many of those involved. The location is not near the station, and even for those families who can afford to drive, the availability of day-long parking at Parramatta is notoriously scarce”: R Blackmore, “Children’s Courts are 100 years old … and we still deserve better” at 27. In 1994, Mr Blackmore chaired an accommodation research project on behalf of the Attorney General, which urged the location of satellite courts within the metropolitan area, including, for example, the northern suburbs.

63. United Kingdom, Home Office, Lord Chancellor’s Department, The Youth Court 2001: The Changing Culture of the Youth Court: Good Practice Guide (Home Office Communication Directorate, 2001) at 9.

64. The Youth Court 2001: The Changing Culture of the Youth Court: Good Practice Guide at 9.

65. The Youth Court 2001: The Changing Culture of the Youth Court: Good Practice Guide at 9.

66. The Youth Court 2001: The Changing Culture of the Youth Court: Good Practice Guide at 10.